Valle v. Fleming

Scott, Judge, delivered the opinion of the court.' The validity of the proceedings which resulted in the sale of the land in controversy has been placed on two grounds ; the first of which is, that the sale was valid under the 8th and the following sections of the 3d article of the act respecting executors and administrators of the Revised Code of 1835, which authorized a sale of the lands of a deceased person to pay his debts, when there was an insufficiency of personal estate. The second ground was put on the 2d and 3d sections of the same article, which prescribed that, when any person should die, after having purchased any real estate, and should not have completed the payment, should it be believed that, after the payment of debts, there would not be sufficient assets to pay for such real estate, the executor or administrator should, by order of the county court, sell all the right, title and interest of the deceased therein. 1. An objection to the sale, when its legality is based on the first ground stated, is, that the requisite notice was not given to those interested to come in and show cause why the sale should not bo made. The law required that the application should be made at one term for the sale, and that six weeks’ notice of it should bo given by publication in a newspaper. At the next term after such notice, upon proof of the publication of it, the court was required to hear the testimony, and dispose of the application. It is contended that this notice is not necessary to give validity to the proceedings ; that the court having jurisdiction of the subject, the failure to give notice does not render its order of sale void; that the presumption of notice arises from the fact of the order having been made, and at most, an omission to give it would only affect the proceedings with error, which would not avoid a sale under them. It is certainly true, that the county courts have no other jurisdiction than that which is specially conferred on them by statute. — 460 — They have no common law jurisdiction, nor can they be said to be courts of general jurisdiction, in whose favor, by the common law, the liberal intendments are indulged, which are extended to courts of that character. But the great mischief which, experience has shown, arises from avoiding sales made under the authority of tribunals having jurisdiction of the subject, have induced courts to extend an enlarged liberality of construction to proceedings instituted for such purpose, with a view to uphold them. As to these proceedings, the presumption extended to courts of general jurisdiction is indulged. No case is more frequently cited, in connection with this subject, than that of Grignon v. Astor, 2 Howard, 319. There, the Supreme Court of the United States went a great way to uphold judicial sales of real estate. Those proceedings were under a statute resembling ours. Notice of the application for the sale of the real estate by an administrator was required by law. It did not appear that the notice had been given. The opinion says, after the court has passed on the representation of the administrator, the law presumes it was accompanied by the certificate of the judge of probate, as that was requisite to the action of the court. The order of sale is evidence of that or any fact which was necessary to give the power to make it, and the same remark applies to the order to give notice to the parties. In the case before the court, the record shows that it was impossible that the notice required by law could have been given. The order of sale was made but two days after the letters of administration were granted. The court, at the term at which the sale was ordered, could not, by law, act on the matter ; a sale could only have been directed at a term subsequent to the application for it. How, then, can a notice be presumed, when the record shows, on its face, that it was impossible, in the nature of things, that it could have been given? There is great difficulty in maintaining that a party is bound by an irregular proceeding, because he did not appeal from it, when the very objection is, that he had no notice, which would have enabled him to be present to take his appeal, and the ap — 461 — peal by law could have been only taken at the term during which the order of sale was made. There is no writ of error allowed in such cases. The case of Snyder v. Markel, 8 Watts, 416, which is relied on by the defendants, and was also used as an authority in the case of Grignon v. Astor, above cited, maintains that the regularity of the proceedings for an administrator’s sale of land of his intestate, cannot be impeached collaterally ; that the remedy is an appeal for the correction of errors in them. How could there have been, an appeal in such a case as the present ? Smith v. Rice, 11 Mass. 507. This is an infirmity attached to these proceedings, which is apparent upon the face of the record, and no length of time can cure it. If the antiquity of the proceedings were such, (and it is not,) as to warrant the application of the maxim ex diuturnitate temporis omnia praesumuntur rite et solenniter esse acta, yet it could have no place here, as the defect in the proceedings is apparent on the record. In the case of Grignon v. Astor, it did not appear but that the notice was given, and as the proceedings had transpired a great length of time before they were assailed, the maxim above cited might have exerted an influence in its determination. But unfortunately, this case is so circumstanced as to be beyond its operation. If we admit that the purchaser is not bound to look behind the order of sale, under which he derives his title, yet the order here shows that it was made at a term at which no possible state of circumstances would authorize it, in the absence of those interested. The order of sale immediately follows the presentation of the application, when the statute required that it should be made at the next succeeding term of the court, after proof of the' publication of six weeks’ notice of the application in a newspaper. 2. Another objection to the validity of the proceedings is, that they want the approval of the court. The statute required' that, at the next term of the county court after a sale, the administrator should make "a full report of his proceedings, and enacted that, if such report of the administrator be not appro — 462 — ved by the court, Ms proceedings should be void, and the court should order a new sale; if the report be approved by the court, such sale should be valid, and the administrator, upon the payment o£ the purchase money, should make to the purchaser a deed, conveying all the right, title and interest which the deceased had in the real estate sold. This objection is not affected by the principle, that a fair purchaser at a sale shall not be affected by any subsequent irregularity of the officer conducting it, as there could be no valid sale until there was a report and confirmation of it. In looking over the cases on administration sales of real estate, a provision like that above cited has not been found. It must have béen intended to have some effect. So far as the court was concerned, the approval would seem to be the crowning act of the sale. That approval could only appear by the record, as it is an act of the court. It is not maintained that it should be in totidem verbis, but the sanction of the court to the proceedings should, in some way, appear; otherwise, the sole condition on which the law imparts any validity to them is not complied with. An order directing the administrator to make to the purchaser a deed, would be an implied sanction of his proceedings. The recital of the .facts in a subsequent application for the sale of the real estate, which was never acted upon, that the land was sold for |16,666|, on a credit, whose duration is not mentioned, to persons not named, whose notes, for the purchase money, were disposed of at a discount not disclosed, and promises a full report thereafter, on no rule or principle can be regarded as any evidence of an approval by the court of the first sale. This application was moreover not made until 1843, upwards of four years from the date of the deed. If an approval after the sale will avail any thing, and one four years thereafter is effectual, no reason is perceived why the sale might not be ratified by an approval at this time. The law evidently contemplates that the deed should not be given, until there is an approval of the report of the proceedings of the administrator. A failure to enter the order of approval might be remedied by an amend — 463 — ment of the record or by mandamus. Nor does the application for the sale of land on the 18th September, 1847, furnish any evidence that the first sale was approved. That application states that a report of the first sale had been made, but it nowhere appears, blit as stated in the application made in 1843. The deed itself furnishes no evidence of the approval of the proceedings of the administrators by the county court. That deed is not in conformity to the statute, such as the court was required by law to direct the administrators to make. It did not convey to the purchaser all the right, title and interest which the deceased had in the real estate, but the administrators, as such, convey the land itself, just as the other joint owners conveyed it, joining in a deed with them, and as administrators, they warrant the title. The case requires no expression of opinion as to this deed, otherwise than as affording no evidence that the court approved the sale, as the deed is not such a one as the court was directed to order to be made to the purchaser. We do not say that, if there had been a report and a deed, in conformity to law, following it, that the approval of the court might have been presumed, on the maxim probatis extremis prsesumuntur media. The approval of the court should have been a matter of record, and it should have been shown by the record. 3. It is impossible, from an examination of this transcript, to say that the sale is valid, on the second ground on which its validity is attempted to be upheld, stated in a preceding part of this opinion. If an order of sale, under the sections referred to, had been contemplated, it would have been for the sale of all the right, title and interest of the deceased in the tract of land purchased, whereas, the order was for the sale of the whole or so much of the r.eal estate as shall be necessary to pay the debts of the deceased. Had the sale been under these .sections, no appraisement would have been required, nor would there have been any necessity for a petition ; yet we find both of these among the papers in the cause. It is not pretended that, had the sale taken place under these sections, that — 464 — the appraisement or petition would have affected its validity. The petition was not so worded as to accomplish any such result as was designed by these sections, nor does the deed itself show that such a purpose was intended. The act that was done by the court could only have been performed under the 8th and following sections of the. 3d article of the act, and the order made shows that the court never intended to act under the second and third sections. If a proceeding is had under one provision of law, and it turns out to be invalid, can it be upheld on the ground that it might have taken place under provisions which would avoid the objections taken to its validity ? The argument cannot be that the second and third sections upheld the proceeding, but that it might have taken place under them, for it is obvious that the end contemplated by these sections was not accomplished by the proceeding which did occur. It is a matter,of regret that purchasers should lose their estates, by reason of irregularities in the proceedings of those entrusted with the execution of the law. This sale bears intrinsic evidence of its fairness. Not the least blame can be imputed to the purchaser. He has been deceived by relying- on the opinion of those, who, though incompetent to advise, yet were, no doubt, conscientious in the views they expressed. These considerations cannot affect the law of the case. To uphold this sale, would repeal every restriction which the law has imposed with a view to prevent unnecessary sales of the real estate of deceased persons. It is obvious that no validity can be imparted to this sale, by reason of any of the proceedings in the suits by R. T. Brown and others against the plaintiffs ; the fact that they were minors, even if any thing was therein contained to affect them, would prevent such a consequence. 4. There was no irregularity affecting the last sale sufficient to invalidate it. The. first administration either continued or it was replaced by the second. If it continued, the association of the name of Melanie Yalle with that of the real administrator, who, it is assumed, was alone competent to act, would — 465 — not prejudice the proceedings. If tbe second grant of letters was valid, tbe sale was equally good. Judge Ryland concurring, tbe judgment is reversed, and tbe cause remanded; Judge Gamble not sitting.